We disagree with Michael to the extent that it stands for the proposition that the rape shield law has any application to prior sexual abuse suffered by a child victim. In construing the rape shield statute, “our paramount concern is the legislative intent” in enacting it….To discern this intent, we must “read words and phrases in context according to the rules of grammar and common usage.”…Ohio’s rape shield law prohibits evidence of “specific instances of the victim’s sexual activity” unless one of four exceptions applies. The statute’s reference to “specific instances of the victim’s sexual activity” connotes volitional activity by the victim with another and not involuntary activity such as that which would stem from being subjected to sexual abuse. State v. Stoffer, 2011 WL 4579182 (Ohio App. 7 Dist. 2011).

In my research on rape shield rules from across the country, this is the first example that I could find in which a court categorically concluded that a rape shield rule does not preclude the admission of evidence of other acts of child sexual abuse committed against the alleged victim. Moreover, this quote strongly implies that the Court of Appeals of Ohio, Seventh District would find that the rape shield rule also does not preclude the admission of evidence of other rapes or sexual assaults committed against an alleged adult victim, a reading borne out by this later passage in the court’s opinion:

[W]e construe that the legislative intent of Ohio’s rape shield law was to address only past consensual sexual activity of the victim and not prior sexual abuse suffered by the victim.

In this post, I will explain why I think that Stoffer is not only horribly misguided but also dangerous.

In Stoffer, Michael Stoffer was convicted of two counts of gross sexual imposition and three counts of illegal use of a minor in nudity-oriented material or performance based, inter alia, upon acts he allegedly committed against his 7 year-old daughter, A.P. At trial,

Stoffer proffered the testimony of Jamie Kemats, a guidance counselor at A.P.’s school. She testified that in January 2008 A.P.’s brother B.P. had reported that another student touched A .P. in gym class. Kemats interviewed A.P. about the incident and confirmed B.P.’s report. The police were summoned and Kemats later learned from the principal that the five-year-old offender admitted to the incident and was removed from the school.

Stoffer claimed that “[b]ecause the incident was of the same nature and occurred around the same time as the crimes charged in the superseding indictment,…the jury should know about it.” The trial court disagreed, concluding that evidence of the incident was inadmissible under Ohio’s rape shield rule, R.C. 2907.05(E), which provides in relevant part that

Evidence of specific instances of the victim’s sexual activity, opinion evidence of the victim’s sexual activity, and reputation evidence of the victim’s sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim’s past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

The Court of Appeals of Ohio, Seventh District disagreed. In reaching this conclusion, the court initially cited to the opinion of the Court of Appeals of Ohio, Second District, in In re Michael, 694 N.E.2d 538 (Ohio App. 2 Dist. 1997). In In re Michael, the defendant allegedly raped an 8 year-old and claimed that the trial court erred by precluding him from presenting witness testimony and Children Services records indicating that other individuals had sexually abused the alleged victim. The defendant acknowledged that this evidence was inadmissible under Ohio’s rape shield rule but claimed that the trial court had to allow him to present it pursuant to his Sixth Amendment right to present a defense.

The Court of Appeals of Ohio, Second District agreed that the defendant had the right to present some evidence of other sexual abuse because otherwise the jury would perceive the alleged victim as a “sexual innocent” and “believe the sexual experience he described must have occurred in connection with the incident being prosecuted; otherwise, he could not have described it.” That said, the appellate court found that the trial court did allow the defendant to present some evidence of this other abuse and that the trial court’s “application of the rape shield statute” to exclude other evidence of this abuse “did not unconstitutionally infringe upon Bryan’s right to present evidence in his defense.”

As noted in the block quote that opened this post, the Court of Appeals of Ohio, Seventh District disagreed in Stoffer, initially concluding that

We disagree with Michael to the extent that it stands for the proposition that the rape shield law has any application to prior sexual abuse suffered by a child victim. In construing the rape shield statute, “our paramount concern is the legislative intent” in enacting it….To discern this intent, we must “read words and phrases in context according to the rules of grammar and common usage.”…Ohio’s rape shield law prohibits evidence of “specific instances of the victim’s sexual activity” unless one of four exceptions applies. The statute’s reference to “specific instances of the victim’s sexual activity” connotes volitional activity by the victim with another and not involuntary activity such as that which would stem from being subjected to sexual abuse.

The court then went on to hold that

This interpretation of Ohio’s rape shield statute is supported by the General Assembly’s use of the “victim’s sexual activity” throughout that provision. The statute specifically prohibits opinion and reputation evidence of the victim’s sexual activity. Opinion and reputation evidence are methods of proving character. Evid.R. 405. Character is generally thought to include qualities, like honesty and integrity, over which that person has control. Therefore, when the General Assembly sought to protect a victim from opinion and reputation evidence, it was contemplating evidence of a victim’s sexual history over which they had control.

The state interests identified by the Ohio Supreme Court in Gardner, supra, which are advanced by the rape shield law also support this understanding of the “victim’s sexual activity.” It is hoped that guarding the victim’s sexual privacy and protecting them from undue harassment encourages the reporting of rape, thus aiding crime prevention. Interpreting the rape shield statute to exclude evidence of past sexual abuse does not further these state interests. While sexual abuse victims may very understandably be reluctant to disclose past instances of sexual abuse, that discomfort is different from the undue harassment that rape shield statutes were enacted to protect against—undue harassment that may be caused by the revelation of one’s own history of questionable voluntary or consensual sexual activity.

Ultimately, the court concluded that

Based on the foregoing, we construe that the legislative intent of Ohio’s rape shield law was to address only past consensual sexual activity of the victim and not prior sexual abuse suffered by the victim. Therefore, the rape shield statute has no application in this case and the trial court erred in applying it.

First, I’m not sure that I buy the court’s logical leap from the presupposition that courts “read words and phrases in context according to the rules of grammar and common usage” to the conclusion that the same rules that apply to character evidence should apply to rape shield evidence simply because Rules 404-405 and the rape shield rule both reference “reputation” and “opinion” testimony. Both Federal Rule of Evidence 610 and Ohio Rule of Evidence 610 preclude the admission of

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced.

Is religious belief/opinion volitional? I suspect that some would say that it is. I suspect that many others would say that it is not. And if we believe that it is not, why shouldn’t Rule 610, which covers opinion testimony, guide how courts construe the rape shield rule and mean that even nonvolitional sexual activity is covered by the rape shield rule?

Second, even if the court is right that the character evidence rules should govern our understanding of how to interpret the rape shield rule, the court is patently wrong that the character evidence rules only govern volitional/consensual actions. Let’s say that a defendant is charged with murder. And let’s say that the prosecution has evidence that the victim stole drugs from the defendant in the past. If the prosecution tries to use this evidence to prove that the murder was likely drug-related because the past drug incident established the defendant’s propensity to engage in drug transactions, the evidence would be inadmissible under Federal Rule of Evidence 404(b)/Ohio Rule of Evidence 404(b), which both provide that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.”

Both of these rules, however, provide that evidence of these other crimes, wrongs, or, acts are admissible to prove other purposes such as motive. Thus, evidence that the victim previously stole drugs from the defendant would be admissible to prove that the defendant had a motive to kill the victim. And indeed, this is exactly what the Court of Appeals of Michigan found in People v. Kennedy, 2007 WL 3309995 (Mich.App. 2007) based upon the exact facts stated above: Evidence of the prior drug theft was admissible, but only for the limited purpose of proving the defendant’s motive to kill the victim.

In other words, evidence that drugs were taken from the defendant without his consent/volition was character evidence and only admissible against the defendant if offered for a permissible purpose. This being the case, why shouldn’t the same analysis apply to the rape shield rule when prior sexual acts are committed against the alleged victim without her consent/volition?

Third, let’s take the court’s conclusion to its logical extreme. Here’s a classic case in which everyone agrees that the rape shield rule applies: A defendant is charged with the homosexual rape of an alleged victim, and the defendant wants to present evidence that the alleged victim is homosexual. The defendant’s theory is obvious: Because the alleged victim is homosexual, this evidence proves that (s)he has a propensity to consent to homosexual acts and that (s)he likely acted in conformity with that propensity, and thus consented, at the time of the crime charged.

Unlike evidence of past child molestation/sexual assault/rape, such evidence clearly goes to the issue of consent and is thus inadmissible under rape shield rules. Indeed, the federal rape shield rule explicitly precludes the admission of evidence of an alleged victim’s sexual predisposition, and evidence of homosexuality clearly constitutes evidence of sexual predisposition. And while some still hold on to the belief that sexual preference is a choice, I think that most people now rightfully realize that it is not a choice. Sexual preference is not volitional. Pursuant to the court’s opinion in Stoffer, that would make it admissible without regard to the rape shield rule.

I am flabbergasted by the conclusion of the Court of Appeals that “[i]nterpreting the rape shield statute to exclude evidence of past sexual abuse does not further…state interests” in “guarding the victim’s sexual privacy and protecting them from undue harassment[,] encourag[ing] the reporting of rape, thus aiding crime prevention.” Really? Take the case of In re Michael. The defendant wanted to present evidence that the alleged child victim was sexually abused to prove that the child victim was fabricating allegations of molestation against him and was able to do so convincingly based upon prior acts of chld molestation committed against him.

Is the court in Stoffer trying to argue that the admission of such evidence does not invade the child victim’s privacy? That deeming such evidence outside the scope of the rape shield rule wouldn’t deter a child victim from reporting prior acts of child molestation? In fairness to the court, the answer is “no.” But doesn’t that actually make the court’s opinion worse? According to the court,

While sexual abuse victims may very understandably be reluctant to disclose past instances of sexual abuse, that discomfort is different from the undue harassment that rape shield statutes were enacted to protect against—undue harassment that may be caused by the revelation of one’s own history of questionable voluntary or consensual sexual activity.

So, even though reading the rape shield rule to cover other acts of child molestation would protect the privacy of alleged victims and diminish their reluctance to report, the court was unwilling to do so because such acts were not in the minds of drafters of rape shield rules?

My response: Shit happens. In response to the assassination of John Lennon and the assassination attempt on Ronald Reagan, Congress enacted Federal Rule of Evidence 704(b), which provides that

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Although this rule was “enacted to limit psychiatric testimony when a criminal defendant relies upon the defense of insanity,” courts have since found that it “applies to all instances in which expert testimony is offered as to the mental state or condition constituting an element of the crime charged or defense thereto,” often to the detriment of prosecutors. United States v. Boyd, 55 F.3d 667, 671 (D.C. Cir. 1995).

Shit happens. Ohio’s rape shield rule states that “[e]vidence of specific instances of the victim’s sexual activity, opinion evidence of the victim’s sexual activity, and reputation evidence of the victim’s sexual activity shall not be admitted” unless an exception applies. Evidence of child molestation is evidence of a specific instance of the victim’s sexual activity. It therefore should not be admissible unless an exception applies. I refer the Court of Appeals to the law of intended consequences.

The rape shield rule should cover evidence of past rapes of adult victims

But did the drafters of rape shield rules really not intend them to cover nonconsensual sexual activity? As noted, there is an exception to Ohio’s rape shield rule that allows for the admission of evidence of specific instances of the victim’s sexual activity to prove the origin of, inter alia, semen. Federal Rule of Evidence 412(b)(1)(A) has a similar exception allowing for the admission of such evidence “to prove that a person other than the accused was the source of semen, injury, or other physical evidence.”

So, when does this exception typically come into play? Defendant is charged with raping Victim, and the prosecution has evidence of injuries suffered by Victim such as a vaginal abrasion. Defendant admits to sexual intercourse with Victim but claims that it was consensual and that the injuries came from another act of nonconsensual sexual abuse committed against Victim. As the Supreme Court of Maine noted in State v. Drewry, 946 A.2d 981, 993 (Me. 2008), under this type of exception, such evidence is sometimes admissible “to ‘generate doubt as to [the defendant’s] participation in abuse,’ even where that evidence involves ‘inquiry into any evidence of abuse.”

Doesn’t the very existence of this type of exception establish that rape shield rules were meant to cover nonconsensual sexual activity? After all, why would evidence of nonconsensual sexual activity only be admissible under an exception to the rape shield rule, and only if offered for a certain purpose, if the rape shield rule does not preclude the admission of nonconsensual sexual activity in general?